(127 Ga. 291)

HOWARD v. BIBB COUNTY. (Supreme Court of Georgia. Jan. 15, 1907.) WATERS AND WATER COURSES-POLLUTIONACTION AGAINST COUNTY-INJURY TO PERSONALTY.

The plaintiff failed to state a cause of action, and a general demurrer to his petition was properly sustained.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, § 55.] (Syllabus by the Court.)

Error from City Court of Macon; Robt. I Hodges, Judge.

Action by H. L. Howard against the county of Bibb. Judgment for defendant, and plaintiff brings error. Affirmed.

The petition alleged, in substance, that the defendant, the county of Bibb, while engaged in working a public road in said county, made a partial dam across a stream which flowed through the premises of plaintiff and which furnished one of the chief water supplies to the cows used by the plaintiff in his dairy business; that, in consequence of the collection of trash and waste matter in the water of said stream, and the use, in the construction of said dam, of green timber, foliage, and other improper materials, the waters of said stream became polluted and poisoned to such an extent that, in conse. quence of the drinking from said stream, his milch cows were so infected that one of them died, and a large quantity of his dairy products were rendered unfit for market. There was no allegation of damage, direct or consequential, to the premises, nor of any depreciation of the market value of the same. The defendant demurred to the petition as setting forth no cause of action against defendant. The court sustained the demurrer and dismissed the petition, to which ruling the plaintiff excepted.

Nottingham & McClellan, for plaintiff in

BECK, J. (after stating the facts). 1. The courts have given full recognition to the principle of law that the right of the owner of land through which a nonnavigable stream flows, to have its waters come on his land in the natural and usual flow and unpolluted, is annexed to the soil and is parcel of the land itself, and comes within the constitutional provision which forbids the taking or damaging of private property for public purposes without just and adequate compensation being first paid. See City of Elberton v. Hobbs, 121 Ga. 749, 49 S. E. 779; Mining Co. v. Joplin, 124 Mo. 129, 27 S. W. 406. In the case at bar, however, the plaintiff does not seek to recover damages for injuries to the land, nor for injuries to any right of user or enjoyment of land, nor is it alleged that the land is less valuable now than it was formerly. The injury complained of in this case resulted from "the drinking of said [pollut

ed] water by plaintiff's milch cows," in consequence of which "for a long time, for several months, plaintiff's said dairy business was seriously injured and damaged, because of plaintiff having sent to market, to his cus tomers, milk and butter, damaged as afore said, before his discovery of the exact conditions," and "because of said infected condition of the water from said stream, as aforesaid, one of the plaintiff's valuable milch cows sickened and died from drinking said water." The case as presented to this court depends upon the determination of one question, and that is whether the county was liable, under the pleadings, for the loss resulting from said injuries. "A county is not liable to suit unless there is a law which in express terms or by necessary implication so declares." Millwood v. De Kalb County, 106 Ga. 743, 32 S. E. 577; Pol. Code 1895, § 341. The Constitution (Civ. Code 1895, 5729) declares: "Private property shall not be taken or damaged, for public purposes, without just and adequate compen. sation being first paid." In referring to the above provision of the Constitution, in the case of Peel v. Atlanta, 85 Ga. 138, 11 S. E. 582, 8 L. R. A. 787, this court held that "the effect of such provisions is not to authorize compensation in all cases where the property may be injured by public works, but only where the enjoyment of some right of the plaintiff in reference to his property is interfered with and the property thereby rendered less valuable." See, also, in this connection, White Star Line Steamboat Co. v. Gordon County, 81 Ga. 48, 7 S. E. 231. In the case of Pause v. Atlanta, 98 Ga. 103, 26 S. E. 492, 58 Am. St. Rep. 290, it was said that "a distinction should be borne in mind between those cases where one seeks to recover because of the appropriation by the public to the public use, of private property, and damages to one's property sustained in consequence of the construction of such public improvement, and that other class of cases in which, though one's property be neither appropriated nor damaged, yet in consequence of the construction of such an improvement, one suffers damage resulting from personal inconvenience, and consequent damage in the conduct of one's business." This distinction has been strictly adhered to by our court in all its decisions on the subject. See Bacon v. Walker, 77 Ga. 339; Smith v. Floyd County, 85 Ga. 420, 11 S. E. 850; Campbell v. Metropolitan St. Ry. Co., 82 Ga. 320, 9, S. E. 1078; Barfield v. Macon County, 109 Ga. 386, 34 S. E. 596. And in all of the decisions involving the liability of counties for damages caused by the construction of public improvements, the rule has been observed that the measure of damages is the actual depreciation in the market value of the plaintiff's premises. See Smith v. Floyd, supra; Roughton v. Atlanta, 113 Ga. 948, 39 S. E. 316; City Council of Augusta v. Schrameck, 96 Ga. 426, 23 S. E. 400,

51 Am. St. Rep. 146; Streyer v. G. S. & F. R. Co., 90 Ga. 56, 15 S. E. 637; City of Atlanta v. Green, 67 Ga. 386; Terrell County v. York (decided this term) 56 S. E. 309. In the case of Austin v. Railway Co., 108 Ga. 671, 34 S. E. 852, 47 L. R. A. 755, Simmons, C. J., quotes the following language from Ricket's Case, L. R., 2 E. & I. App. Cases, 198 (cited also in the Peel Case, supra): "The damage must be to the land itself.

Any other construction would open the doors to claims of so wide and indefinite a character as could not have been in the contemplation of the Legislature." And in discussing this proposition the learned Chief Justice says: "Irrespective of all the authorities cited, there is a view of this question arising out of the very language of the Constitution itself, which lends great weight to that construction which limits the damages recoverable to those arising from taking the land or physically interfering with some right appurtenant thereto. In requiring damages to be first paid the conclusion is irresistible that the Constitution guaranties payment of those direct, immediate injuries which certainly, directly, and inevitably flow from the construction of the railroad, highway, or other public works." It would seem, therefore, that if the construction of the said public improvements resulted in contaminating the waters of the creek which runs through plaintiff's land, and thereby decreased the value of said land, then the damage thus done would come within the constitutional provision, and the plaintiff would be entitled to have compensation therefor, the measure of such damages being the diminished value of the land because of the pollution of the stream. But we can find no authority for going beyond this. And after a careful examination of all the authorities on the subject, we are of the opinion that the damages claimed by the plaintiff are not authorized, either in express terms, or by necessary implication from the above-quoted provisions of the Constitution (Civ. Code 1895, § 5729), and there is no statutory provision for subjecting counties to actions for the recovery of damages such as are here sought to be recovered. Cited by counsel for plaintiff: Civ. Code 1895, § 5729; City of Atlanta v. Green, 67 Ga. 386; Smith v. Floyd County, 85 Ga. 424, 11 S. E. 850; 24 Am. & Eng. Ency. L. 979, 980, 981, 982; 22 Enc. Pl. & Pr. 1161, 1171; 2 Cur. L. 2035, 2038; County of Harris v. Brady, 115 Ga. 767, 42 S. E. 71; Westbrook v. Baldwin County, 121 Ga. 442, 49 S. E. 286; Civ. Code 1895, §§ 3847, 3905, 3906, 3910, 3911, 3913; Smith v. Eubanks, 72 Ga. 281; Cheeves v. Danielly, 80 Ga. 115, 4 S. E. 902; City of Atlanta v. Green, 67 Ga. 389; Carlisle v. Callahan, 78 Ga. 320, 2 S. E. 751; Stewart v. Hanler House Co., 75 Ga. 598. Cited by counsel for defendant: Pol. Code 1895, § 341; Millwood ▼. De Kalb County, 106 Ga. 747, 32 S. E. 577;

City of Atlanta v. Green, 67 Ga. 390; Campbell v. Railway Co., 82 Ga. 320-327, 9 S. E. 1078; Peel v. Atlanta, 85 Ga. 139, 11 S. E. 582, 8 L. R. A. 787; Austin v. Railway Co., 108 Ga. 671, 34 S. E. 852, 47 L. R A. 755; Civ. Code, 1895, §§ 3061, 3879; Pause v. Atlanta, 98 Ga. 99, 26 S. E. 489, 58 Am. St. Rep. 290; Elberton v. Hobbs, 121 Ga. 749, 49 S. E. 779; Smith v. Floyd County, 85 Ga. 425, 11 S. E. 850; Streyer v. Railroad Co., 90 Ga. 56, 15 S. E. 637; Pause v. Atlanta, 98 Ga. 105, 26 S. E. 489, 58 Am. St. Rep. 290.

Judgment affirmed. All the Justices concur, except FISH, C. J., absent.

(127 Ga. 276)

BARKER et al. v. STATE. (Supreme Court of Georgia. Jan. 15, 1907.) 1. CRIMINAL LAW-MISCONDUCT OF COUNSEL -MISTRIAL.

That a person accused of a crime does not make a statement is not a proper subject of comment by the prosecuting attorney; nor should he, in the presence of the jury, call on the prisoner's counsel for an explanation of the failure to make a statement. Where this has been done on application duly made, the court should grant a mistrial, or at least obviate any injurious effects by appropriate instructions, if this be practicable. Minor v. State, 48 S. E. 198, 120 Ga. 490; Cæsar v. State, 53 S. E. 815, 125 Ga. 6.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1672, 1693.] 2. GAMING-EVIDENCE.

Evidence that an accused person played cards, with nothing to show that money or other thing of value was bet, will not warrant a verdict convicting him of gaming.

[Ed. Note. For cases in point, see Cent. Dig. vol. 24, Gaming, §§ 291, 292.] (Syllabus by the Court.)

Error from Superior Court, Tift County; R. G. Mitchell, Judge.

Sum Barker and others were convicted of gaming, and bring error. Reversed.

C. C. Hall and R. D. Smith, for plaintiffs in error. W. E. Thomas, Sol. Gen., for the State.

LUMPKIN, J. Judgment reversed. All the Justices concur, except FISH, C. J., absent.

(127 Ga. 294)

MACON & B. RY. CO. v. WALTON. (Supreme Court of Georgia. Jan. 15, 1903.) 1. JUDGMENT-RES JUDICATA-DISMISSAL OF

ACTION.

Where a suit was brought in a justice's court, and the same was dismissed on motion of defendant because the summons did not comply with the requirement that it have attached thereto "a copy of the cause of action sued on," and because "it was impossible to tell from the summons, or the 'account' thereto attached, the nature of the claim upon which the action was based," no adjudication of the merits of the cause was made.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, § 1165.]

2. SAME.

The court properly overruled a plea of res adjudicata which alleged that a cause between the same parties had been dismissed for the reasons stated in the preceding headnote.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, 1165.j

3. CARRIERS-DELAY IN TRANSPORTING GOODS -ACTION-NATURE.

*

A petition alleging that the defendant company "did on the 23d day of July, 1902, undertake to transport from Lizella, Bibb county, Ga., to Atlanta, within a reasonable time, a certain car load of water melons, that said defendant failed to transport said car of melons within a reasonable time, and said melons, having been delayed three days or more, were damaged on account of said delay to the amount of $50," states a cause of action arising ex contractu.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 436.]

4. PLEADING-SHOWING AS TO VENUE.

And it sufficiently shows that the contract was entered into in Bibb county, where the suit was brought, and was, therefore, good as against that ground of the demurrer raising the question of venue.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 100.]

5. CARRIERS-DELAY IN TRANSPORTING GOODS -ACTION-SUFFICIENCY OF COMPLAINT.

That paragraph of the petition claiming damages alleged to have been sustained in consequence of defendant's routing the car over a different line from that stipulated in the contract of affreightment was not open to demurrer upon the ground that it does not set out a cause of action.

6. SAME.

A paragraph alleging that the plaintiff "was [damaged] for overcharge of freight on said car of melons in the sum of $20" was not open to demurrer on the ground that it set forth no legal cause of action; and the further demurrer to this paragraph, pointing out that it was wanting in definiteness, was sufficiently met by appropriate amendment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 436.]

7. SAME-DUPLICITY-AMENDMENT.

The paragraph of plaintiff's petition alleging that, "if said melons were not delayed in transit, they were damaged by reason of the fact that said company failed to notify your petitioner of the arrival of said car of melons, as is the general custom of railroads in Atlanta, as well as of this defendant, and that, if petitioner was notified, it was after the said damages had been sustained, and not immediate notice, as is the general custom to give," was duplicitous; and the court erred in overruling a ground of the demurrer pointing out this vice, the same not being cured by an amendment merely alleging that said paragraph is amended so that it shall read as follows: "Petitioner shows that said melons were damaged by reason of the fact that said company failed to notify, etc.; remainder as in petition." What the abbreviation "etc." was intended to include is left to conjecture, and it does not clearly appear whether the amendment is to precede the paragraph as it stood originally, or is to stand in lieu of it. Pitts v. Smith, 33 S. E. 814, 108 Ga. 37.

8. APPEAL-REVIEW-SCOPE AND EXTENT.

It is unnecessary to deal with the other questions raised by the assignment of error upon the judgment overruling the motion for a new trial. The court below having erroneously overruled that ground of the demurrer last set forth, all subsequent proceedings in the trial are to be considered as nugatory. So. Ry. Co.

v. Dyson, 34 S. E. 997, 109 Ga. 104: Lou. R. Co. v. Cody, 46 S. E. 429, 119 Ga. 372. [Ed. Note.-For cases in point, see Cent. Dig vol. 3, Appeal and Error, §§ 3331-3341.] (Syllabus by the Court.)

Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.

Action by J. A. Walton against the Macon & Birmingham Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Hardeman & Jones, for plaintiff in error. B. J. Dasher, for defendant in error.

BECK, J. Judgment reversed. All the Justices concur, except FISH, C. J., absent.

(127 Ga. 277)

JOHNSON v. STATE. (Supreme Court of Georgia. Jan. 15, 1907.) ASSAULT AND BATTERY - ACCUSATION - EVIDENCE.

An accusation against A. for the offense of assault and battery charged that said defendant "did unlawfully and with force and arms assault and beat the person of one [B.] with a pocket knife." The undisputed evidence showed that A. tore B.'s clothes and held him with his left hand, but did not strike him with a knife, nor attempt to strike him with the knife, which was in his right hand. Held, that the evidence did not authorize a finding that the defendant was guilty of the offense of assault and battery, and the court erred in refusing to grant the writ of certiorari prayed for on this ground. Fulford v. State, 50 Ga. 591.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 4, Assault and Battery, §§ 126, 136-139.] (Syllabus by the Court.)

Error from Superior Court, Tift County; R. G. Mitchell, Judge.

Will Johnson was convicted of assault, and brings error. Reversed.

C. C. Hall and R. D. Smith, for plaintiff in error. W. E. Thomas, Sol. Gen., for the State.

BECK, J. Judgment reversed. All the Justices concur, except FISH, C. J., absent.

(127 Ga. 358)

BOYD v. KINZY. (Supreme Court of Georgia. Jan. 17, 1907.) 1. LANDLORD AND TENANT-SUBTENANCY-ESTOPPEL TO DISPUTE LANDLORD'S TITLE.

When the lessee of lands sublets to another, the latter giving his promissory note for the amount of rent agreed upon, the relation of landlord and tenant exists, and the subtenant, in proceedings to enforce the payment of the rent by distress warrant, will not be permitted to dispute the title of his landlord by setting up that the subtenancy was created without the consent of the owner.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 173.] 2. SAME.

Upon review, at request of counsel for plaintiff in error, of the case of Morgan ▼.

Morgan, 65 Ga. 493, it is agreed that the principle of law enunciated in the third headnote is sound, and should be adhered to; it being supported by a long line of authorities. Spence v. Wilson, 102 Ga. 762, 29 S. E. 713; Hudson v. Stewart, 110 Ga. 37, 35 S. E. 178; Fletcher v. Fletcher, 123 Ga, 470, 51 S. E. 418, and citations.

3. SAME-ACTION FOR RENT EVIDENCE.

The issue made upon the defendant's contention that his note for rent was "obtained by fraud and misrepresentation" upon the part of the plaintiff was duly submitted to the jury by the court's charge, and the evidence authorized the finding against the defendant upon that issue.

4. SAME AMOUNT DUE.

The evidence supported the finding of the jury as to the amount of rent due.

(Syllabus by the Court.)

Error from Superior Court, Hall County; J. J. Kimzy, Judge.

Action between R. M. Boyd and John Kinzy. Judgment for the latter, and Boyd brings error. Affirmed.

J. G. Collins, for plaintiff in error. Howard Thompson, for defendant in error.

BECK, J. Judgment affirmed. All the Justices concur, except FISH, C. J., absent.

(127 Ga. 301)

DOODY & CO. v. JEFFCOAT. (Supreme Court of Georgia. Jan. 15, 1907.) 1. COSTS - DISMISSAL OF ACTION - NONPAYMENT-NEW ACTION.

A suit against a partnership composed of two partners is not subject to abatement for the reason that a former suit had been brought by the plaintiff against one of the members as an individual, upon the same account, which had been dismissed, and the plaintiff had failed to pay the costs of the same or file a pauper affidavit before the institution of the suit against the partnership.

2. JUDGMENT - ENTRY - STRIKING ONE DEFENDANT.

Where two are sued as partners, the plaintiff may strike one of the defendants and obtain a judgment against the remaining sole defendant, provided the evidence shows a several liability upon his part.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, § 415.]

(Syllabus by the Court.)

Error from Superior Court, Sumter County; Z. A. Littlejohn, Judge.

Action by Doody & Co. against A. S. Jeffcoat and M. J. Patterson. Judgment against Jeffcoat was reversed on certiorari, and plaintiff brings error. Reversed.

Doody & Co. brought suit, in a justice's court, against Mrs. A. S. Jeffcoat and M. J. Patterson, doing business under the firm name of "Patterson Auction Company," upon an account. To this suit Mrs. Jeffcoat filed a plea in abatement that a former suit had been brought upon the same account by the plaintiff against M. J. Patterson, doing business under the name of "Patterson Auction Company," which had been dismissed, and the plaintiff had not paid the costs, and

had not filed an affidavit of inability, from poverty, to pay the costs, prior to the institution of the present suit. The Justice overruled the plea in abatement. The plaintiff then moved to strike the name of M. J. Patterson from the case, leaving the same to proceed against Mrs. Jeffcoat alone. To this Mrs. Jeffcoat objected, and the court overruled the objection and granted the motion. Judgment was then rendered against her. The case was carried, by certiorari, to the superior court, error being assigned upon the rulings above referred to and to the judgment rendered. The judge sustained the certiorari, upon the ground that the justice erred in overruling the plea in abatement, and made a final judgment, dismissing the case. Doody & Co. excepted.

Lane & Maynard and Hardeman & Jones, for plaintiff in error. Shipp & Sheppard, for defendant in error.

COBB, P. J. (after stating the facts). 1. The only questions argued in the briefs are those relating to the overruling of the plea in abatement and the striking of the name of the defendant Patterson, thus allowing the suit to proceed against Mrs. Jeffcoat alone. The first suit was against Patterson as an individual. It is true that he was described as doing business in the name of the "Patterson Auction Company," but it was none the less a suit against Patterson as an individual. The second suit was a suit against a partnership. It is true that this partnership was alleged to have the same name as that under which Patterson, in the first suit, was declared to be doing business. It is true that each suit was founded upon the same account, but the suits were not identical. A suit against an individual is a different thing from a suit against a partnership of which that individual happens to be a member. The Code provides that when a suit has been dismissed by the plaintiff he "may recommence his suit on the payment of costs." Civ. Code 1895, § 5043. This, of course, means the identical suit, and has no application where the second suit is substantially different from the one that has been brought and dismissed. See, in this connection, White v. Moss, 92 Ga. 244, 18 S. E. 13 (2); Ford v. Clark, 75 Ga. 612. If the plaintiff had stricken Mrs. Jeffcoat as a defendant, leaving the suit to proceed against Patterson, a more difficult question would have arisen. 2. In Francis v. Dickel, 68 Ga. 255, it was held that, if two or more defendants are sued as partners, and it appears, on the trial, that some of them are liable and others are not, the suit will not be abated or be quashed on that account, but may proceed against the other defendants. It was said that in such case the party not liable should be stricken, but, if there was no objection to the evidence showing that only one was liable, the verdict against the defendant shown to be